Citation Nr: 1454435
Decision Date: 12/10/14 Archive Date: 12/16/14
DOCKET NO. 10-06 097 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota
THE ISSUE
1. Entitlement to service connection for diabetes mellitus.
2. Entitlement to service connection for seizures or disability manifested by periodic losses of consciousness.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Chris Miller, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1976 to December 1980.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA).
A hearing on this matter was held before the undersigned Veterans Law Judge on September 19, 2011. A copy of the hearing transcript has been associated with the file.
The Veteran's claim for diabetes mellitus with seizures was first adjudicated in an August 1998 rating decision. The Veteran filed an application to reopen in May 2007 that included service treatment records that previously had not been associated with the Veteran's claims file. A December 2011 Board decision ordered that the Veteran's claim be reconsidered as required 38 C.F.R. § 3.156(c), and additional development was ordered upon remand. The Board finds that there was substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Appeals Management Center (AMC) provided the Veteran the requisite forms that were necessary to attempt to obtain/recreate service treatment records, which were deemed unavailable in an April 2010 formal finding of unavailability. The AMC has also contacted military facilities in San Diego, California, and Quantico, Virginia, that were identified by the Veteran, and no records were found. A formal finding of unavailability was issued in June 2012. Outstanding VA treatment records were obtained and added to Virtual VA. Finally, a medical opinion was obtained in May 2012 that addressed the Board's remand instructions, at least with respect to the issue decided herein.
While there is sufficient evidence to adjudicate the Veteran's diabetes claim, as noted in the analysis below, there is insufficient evidence to adjudicate the question of service connection for seizures/losses of consciousness. Therefore, the Board is bifurcating these issues, and the issue of entitlement to service connection for seizures or periodic losses of consciousness is addressed in the remand that follows the decision below.
FINDING OF FACT
Diabetes mellitus did not have its onset in service and is not otherwise related to active military service; diabetes was not manifested within the first post-service year.
CONCLUSION OF LAW
The Veteran does not have diabetes mellitus that is the result of disease or injury incurred in or aggravated by active military service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1131, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Procedural Duties
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
The RO sent a letter to the Veteran in July 2007, prior to the initial adjudication of his claim of service connection, giving him proper notice in satisfaction of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
All pertinent, identified medical records have been obtained and considered. Specifically, private treatment records, records from VA, and other records have been obtained. A formal finding of unavailability for records from the Social Security Administration was issued in June 2011. The Veteran was afforded a VA medical examination in January 2010 and a clarifying medical opinion was obtained in May 2012. There is no argument or indication that the opinion is inadequate. The Veteran had an opportunity to provide additional information or evidence. There is no indication of available, pertinent outstanding evidence. The Board notes that while the Veteran submitted Forms NA 13075 and 13055 in August 2012, efforts to find records from the facilities mentioned in those forms have already been made, and records from Bethesda Naval Hospital have already been obtained.
As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the VCAA requirements with regard to the claim of service connection for diabetes.
II. Analysis
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To make these determinations, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).
Certain chronic diseases, including diabetes, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).
If chronicity (i.e., permanency) of disease or injury in service is not shown, or is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). The Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, diabetes is a chronic condition under 38 C.F.R. § 3.309(a).
The gravamen of the Veteran's claim is that seizure-like episodes, where he lost consciousness, that he was treated for in-service were a manifestation of the onset of his diabetes, inasmuch as the problems he was having may have been due to hypoglycemia. Specifically, the Veteran states that he received treatment at Bethesda Naval Hospital (Bethesda), MCRD San Diego, Subic Bay, Philippines, and MCDEC Quantico. While the Veteran has provided records from Bethesda, formal findings of unavailability have been issued as to records from the other facilities.
In his June 2007 statement, the Veteran states that he was diagnosed with diabetes in September 1997 (December 2001 VA treatment records state that the diagnosis was in August 1996). The Veteran asserted that he had been hypoglycemic since boot camp. He also stated that the book Hypoglycemia for Dummies informed him that his seizures were related. However, he did not provide any pertinent excerpt from this book. The Veteran elaborated in his February 2010 VA Form 9 that he was admitted to Bethesda in January 1980 for intermittent unconscious episodes, and that a blood glucose level of 144 was recorded while he was admitted. The Veteran states that this identified him as having diabetes symptoms. He believes that his carbohydrate-rich military diet contributed to his diabetes, and that he continually went to sick call while stationed at Subic Bay due to what he believes were diabetes symptoms. At his January 2010 VA examination, the Veteran stated that since 1980, 4-5 times per year he has had spells that begin with echoing sounds, sweating, and vision changes with yellow bright light before he passes out.
Prior to the Veteran's diabetes diagnosis, VAMC Records from 1989 through 1991 provide details as to the Veteran's medical history. Questionable hypoglycemia is noted in July 1990, while hypoglycemia is ruled out in a record from that same day. A history of hypoglycemia is also noted in September 1991.
The Veteran is not entitled to service connection on a presumptive basis. First, medical evidence is against service connection. He was not diagnosed with diabetes until either 1996 or 1997, sixteen or seventeen years after service. The June 2012 opinion including specific findings that the Veteran's episodes of lost consciousness and lightheadedness did not represent the onset of diabetes in service. The reviewer noted that there was no diagnosis of diabetes in service. He also noted that the glucose level of 144 is not diagnostic for diabetes, and that in the 1980 hospitalization the Veteran was diagnosed with a character disorder. A record from November 1990 was an uninterpretable document with no record of blood sugar levels. Concerning the possibility that diabetes had onset in service but had not been diagnosed until 1996, the examiner stated that such a latent period was medically inconceivable.
Continuity of symptomology also does not allow the Veteran to be awarded service connection on a presumptive basis. First, to the extent the Veteran believes that the periods of lost consciousness in service were a manifestation of diabetes, he is not qualified to make that connection as a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007). Even if these periods of lost consciousness were manifestations of diabetes, the Board does not find the Veteran credible in his assertions that they first began in service. When the Veteran was treated for these spells in service, he told medical staff at Bethesda that these symptoms began when he was nine years old. See record from January 1980. VA records also show that he told VAMC staff that they began in childhood. See, e.g., record from March 1990. Prior lay evidence from the Veteran clearly shows that they predated service by a decade. To the extent that these periods of lost consciousness were aggravated by service, development as to that issue is being ordered in the remand section of this opinion.
Accordingly, service connection under 38 C.F.R. § 3.309(a) is not warranted, and diabetes mellitus may not be presumed to have been incurred in service. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307, 3.309.
Finally, service connection is not warranted on a direct basis, inasmuch as he has not demonstrated a nexus to military service.
Although the Veteran believes that his current diabetes is related to his in-service blood sugar reading of 144, periods of loss of consciousness in service, or his carbohydrate-rich military diet, he is not competent to offer an opinion in this regard, especially given that the credible evidence does not establish continuity of symptomatology that began in service for this condition. Rather, this question requires specialized knowledge, training, or expertise due to the complex nature of the endocrinology system. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Jandreau, 492 F.3d at 1377. The Veteran has not submitted a medical opinion in support of his claim, and VA examiners provided a negative opinion in both the January 2010 examination and June 2012 VA medical opinion. As noted above, the VA examiner in the latter stated that the blood sugar reading of 144 and the periods of lost consciousness in service did not represent the onset of diabetes, and that a latent period from 1980 to 1996 was medically inconceivable. The opinion considers the Veteran's history and is well reasoned, thorough, and detailed. The Board finds it probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Accordingly, the Veteran is not entitled to service connection. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).
ORDER
Service connection for diabetes mellitus is denied.
REMAND
While the Veteran is not service connected for diabetes, any entitlement to service connection for seizures or disability manifested by periods of lost consciousness is a separate issue that needs to be developed, thus warranting remand. Evidence of record suggests that the Veteran's periods of lost consciousness may be a psychiatric issue. While at Bethesda in 1980, a character disorder assessment was made by a psychiatrist, and the Veteran was also diagnosed with vasovagal syncope. A neurology consultation in June 2008 found that clinical suspicion for epilepsy was low, and the neurologic examination was non-focal. The physician noted that the Veteran had an extensive psychiatric history, and that some of his spells could be non-epileptic in nature. Accordingly, a VA examination is necessary to determine whether these spells are related to psychiatric disability, and whether they were incurred or aggravated by the Veteran's military service. Inasmuch as the Veteran has not had a neurology examination specifically for these symptoms, the Board will order one.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for VA examinations by a psychiatrist and neurologist to determine the nature and etiology of any seizures or disability manifested by periods of lost consciousness. All indicated tests and studies should be performed. The claims folder, including a copy of this remand, must be sent to the examiner for review in conjunction with the examination. The VA examiners are requested to specifically address the following:
(a) Is it clear and unmistakable (undebatable) that any seizure disorder or disability manifested by periods of lost consciousness pre-existed the Veteran's period of active duty service? (Please point to medical evidence of record and identify medical principles relating to such a disability that support the conclusion.)
(b) If there is clear and unmistakable evidence that a seizure disorder or disability manifested by periods of lost consciousness pre-existed the Veteran's period of active duty, is there also clear and unmistakable evidence (evidence that is obvious and manifest/undebatable) that either disability was not aggravated beyond natural progression during this period of active duty? (As with the answer to (a), point to evidence and medical principles supporting the conclusion.)
All opinions must be accompanied by a detailed rationale, especially with regard to any findings that a disability undebatably pre-existed military service or undebatably was not aggravated during service.
(c) If there is not clear and unmistakable evidence that seizure disorder or disability manifested by periods of lost consciousness pre-existed his period of active duty, is it at least as likely as not (50% or more) that any such disability had its onset during the Veteran's military service, or is otherwise related to his military service?
In answering these questions, the examiner should address the 1980 records from Bethesda Naval Hospital and post-service VA treatment records, including the Veteran's multiple statements that these fainting spells began in childhood. The examiner should consider the Veteran's lay statements, and set forth the medical reasons for accepting or rejecting these statements. The examiner should also take into consideration the fact that the Veteran's remaining service treatment records are unavailable aside from his entry examination and medical history from November 1975, when he affirmatively denied dizziness and fainting spells in the latter.
All opinions expressed must be supported by complete rationale. If an examiner feels that the requested opinions cannot be rendered without resorting to speculation, he/she should state whether the problem is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), by a deficiency in the record (i.e., additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). (If a deficiency in the record is identified, the originating agency should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)
2. When the development requested has been completed, the case should be reviewed on the basis of the additional evidence. If a benefit sought is not granted, furnish a Supplemental Statement of the Case and afford the Veteran opportunity to respond before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs